A
state’s removal of a civil action to federal court waives the sovereign
immunity conferred by the Eleventh Amendment, the Ninth U.S. Circuit Court of
Appeals ruled yesterday.

“Allowing
a State to waive immunity to remove a case to federal court, then ‘unwaive’ it
to assert that the federal court could not act, would create a new definition
of chutzpah,” Judge Andrew Kleinfeld wrote for the court.

Chutzpah “is that quality enshrined in a man who, having killed his mother and
father, throws himself on the mercy of the court because he is an orphan,” the
judge explained in a footnote, citing Leo Rosten’s “The Joys of Yiddish.”

The
ruling came as the court rejected the University
of California’s
appeal from an order denying its motion to dismiss a suit by Dr. Stephen
Embury. The physician, who was fired by the university, claims his discharge
violated the state and federal due process clauses and state labor law.

The
UC removed the suit to federal court in April 2001, then moved to dismiss for
failure to state a claim. The motion was granted, but with leave to amend.

Embury
amended his complaint, and the UC then moved to dismiss, arguing Eleventh
Amendment immunity for the first time.

At
the hearing on the second motion, U.S. District Judge Claudia Wilken of the
Northern District of California inquired as to whether the state was raising
immunity as to the entire case, or only as to some of the claims. Defense counsel
expressed uncertainty and asked for time to confer with his client.

A
month later, the university’s counsel notified the court that UC was claiming
immunity as to all claims. Wilken denied the motion, citing earlier cases
condemning “improper manipulation of the judicial process” and ruling that the
state waived any immunity by removing the case.

Agreeing
with the district judge, Kleinfeld cited Lapides
v. Board of Regents of University System of Georgia (2002) 535 U.S.
613. The high court in that case held unanimously that the state had waived
Eleventh Amendment immunity, at least as to state law claims, by removing the
case.

The
court rejected the plaintiff’s federal claims for other reasons, leaving
unresolved the issue as to whether the waiver of immunity applied to those
claims as well.

In
Embury’s case, the university conceded that Lapides,
which was decided while its appeal from Wilken’s ruling was pending, foreclosed
its claim of immunity on the state law causes of action. But it argued that it
was still entitled to immunity from the federal claims, and in particular from
a claim for damages.

The
only federal claim in the original complaint was for declaratory and injunctive
relief.

But
Kleinfeld said the waiver necessarily applies to the entire suit, including
claims made by amendment after the action is removed. He cited the Eleventh
Amendment’s injunction that federal judicial power does not “extend to any suit
in law or equity” against a state.

The
“any suit,” language is significant, the judge said. Like the removal statute,
he explained, the constitutional provision refers to actions rather than
claims.

When
a state removes an action to federal court, he elaborated, it invokes federal
judicial power “over the ‘suit,’ not just the claims that had already been
made.”

Kleinfeld
cited a1992 case in which the UC waived Eleventh Amendment immunity while the
action was pending before the Ninth Circuit, but attempted to withdraw the
waiver after the action was consolidated and became part of multidistrict
litigation.

The
Federal Circuit held that the waiver could not be withdrawn. “Upon entering the
litigation area the Regents, like all litigants, became subject to the Federal
Rules [and] accpted the authority of the court.”